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Texas Exempt Wells: Where Does Fracking Fit?

I am excited to have an article, “Texas Exempt Wells: Where Does Fracking Fit?,” published in the current issue of the Natural Resources Journal. This issue of the NRJ focuses on water and offers articles in a variety of topics. To view the current issue, click here.

In our article, Lubbock-based agricultural law attorney Amber Miller and I offer an in depth analysis of the Texas exempt well statute and ask the important question of where water used for hydraulic fracturing fits under this statutory provision. Here is a short abstract explaining the content of the paper:

“In the midst of a record-setting drought and an unprecedented oil and gas boom, an important question has arisen under Texas water law. Where do the water wells that supply fresh groundwater for the fracking process fit under the current Texas Water Code? Are these wells “exempt” under Texas Water Code section 36.117(b)(2) as water wells used solely for oil and gas drilling and exploration, which would excuse the wells from many requirements imposed on most other water wells? Specifically, must groundwater wells drilled for fracking comply with the groundwater conservation districts’ (GCDs) permitting requirements prior to drilling and operation? It remains uncertain whether such wells fall within the scope of section 36.117(b)(2), because fracking was not commonly used when Texas passed the current statutory exemption for oil and gas rig water supply wells in 1971. Moreover, GCDs disagree on whether fracking should be classified as drilling, exploration, or production, and, consequently, whether such wells are exempt from GCD requirements. This paper focuses on the scope of Texas Water Code section 36.117(b)(2) and whether this exempt well provision applies to groundwater wells that are drilled solely for use in hydraulic fracturing.”

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